National Green Tribunal
Dileep B Nevatia vs State Of Maharashtra on 3 July, 2020
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
M.A. No.03/2015
In
M.A. No. 202/2013
in
Original Application No. 36/2011(WZ)
Dileep Nevatia Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 03.07.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
HON'BLE MR. SIDDHANTA DAS, EXPERT MEMBER
For Applicant(s) : Mr. Dileep Nevatia, Applicant in person
For Respondent(s) : Mr. Aniruddha S. Kulkarni, Advocate for CPCB
Mr.Rahul Garg, Advocate for MoEF& CC
Mrs. Supriya Dangare, Advocate
ORDER
1. By filing this application, the applicant has raised the necessary protocol for maintaining the ambient air quality. The learned counsel representing the Central Pollution Control Board (CPCB) has submitted that necessary protocol has been issued and ambient air quality has been notified by the authority concerned.
2. The learned counsel appearing for applicant has submitted that the standards presently set for noise levels in relation to the sirens and multi-toned horns are not in the consonance with the Environment protection Rules, 2006 r/w Notification dated 31.07.2014 issued by Environment Department for the Govt. of Maharashtra which specified a certain decibel higher standard than those specified in Environment Protection Rule.
13. Before entering into the arena of above issues, we would like to lay emphasis on fact that increasing noise levels in the urban areas, is posing a serious threat to health of the people in general and especially to the children and old, in particular. The Hon'ble Supreme Court and various High Courts, have time and again emphasized the need to control noise pollution and we do not wish to reproduce all such catena of Judgments, as importance of maintaining noise levels within urban areas was generally agreed by the learned Counsel appearing in the present Application too. It is also an admitted fact that automobiles, due to its engine (auto mechanism) noise and also, noise generated by blowing of horns contribute significantly to ambient noise levels in urban areas.
Needless to say that various reports available in the public domain, record that ambient noise levels in most of urban areas in the country are exceeding the ambient noise level standards as set out in the Noise Pollution (Regulation and Control) Rules, 2000. Noise pollution is a significant environmental problem in many urban areas. This problem has not been adequately addressed and remedied despite the fact that it is growing in developing countries.
This widespread non- recognition of noise pollution problem, in a similar fashion as to air and water pollution problems, could be attributed to reasons such as; by the definition and perception of noise as a subjective experience, short decay time, and difficulty to associate cause with effect when it comes to health impacts.
Depending on its duration and volume, the effects of noise on human health and comfort are divided into four categories; physical effects, such as hearing defects; physiological effects, such as increased blood pressure, irregularity of heart rhythms and ulcers;
2psychological effects, such as disorders, sleeplessness and going to sleep late, irritability and stress; and finally effects on work performance, such as reduction of productivity and misunderstanding what is heard.
4. The Motor vehicle rule 120 prescribes the noise standards for automobiles at manufacturing stage and are as under:
"120. (1) xxx xxxxxxxxxxx (2) Noise standards--Every motor vehicle shall be constructed and maintained so as to conform to noise standards specified in Part E of the Schedule VI to the Environment (Protection) Rules, 1986, when tested as per IS:
3028-1998, as amended from time to time. Similarly, Section 126 of the Central Motor Vehicles Rules, stipulate the requirement that prototype every motor vehicle to be subjected to test. The Rule is reproduced below:
126. Prototype of every motor vehicle to be subject to test---
On and from the date of 'Commencement' of Central Motor Vehicles (Amendment) Rules 1993, every [manufacturer or importer] of motor vehicles other than trailers and semi- trailers shall submit the prototype of the vehicle [to be manufactured or imported by him] for test by the Vehicle Research and Development Establishment of the Ministry of Defence of the Government of India or Automotive Research Association of India, Pune, [or the, Central Farm Machinery Testing and Training Institute, Budni (MP)] or the Indian Institute of Petroleum, Dehradun, [or the Central Institute of Road Transport, Pune, or the International Centre, for Automotive Technology. Manesar,] [or the Northern. Region Farm Machinery Training and Testing Institute, Hisartesting of combine harvester)] and such other agencies as may be specified by the Central Government or granting a certificate by that agency as to the compliance of provisions of the Act and these rules:
[Provided that the procedure for type approval and certification of motor vehicles of compliance to these rules shall be in accordance with the AIS; 017-2000, as amended from time to time:] [Provided further that in respect to the vehicles imported into India as completely built units (CBU), the importer shall submit a vehicle of that particular model and type to the testing agencies for granting a certificate by that agency as to the compliance to the provision of the Act and these rules.] [126A. The testing agencies referred to in rule 126 shall in accordance with the procedures laid down by the Central Government also conduct tests on vehicles drawn from the production line of the manufacturer to verify whether these vehicles conform to the provisions of [rules made under section 110 of the Act]:] [Provided that in case the number of vehicles sold in India for a given base model and 3 its variants (manufactured in India or imported to India) are less than 250 in any consecutive period of six months in a year, then such base model and its variants need not be subjected to the above test, if at least one model or its variants manufactured or imported by that manufacturer or importer, as the case may be, is subjected to such tests at least once in a year:
Provided further that, in case the number of base models and its variants manufactured/imported is more than one and if the individual base model and its variants are less than 250 in any consecutive period of six months in a year, then the testing agencies can pick up one of the vehicle out of such models and their variants once in a year for carrying out such test.]"
5. The provisions of Rule 120 of the Central Motor Vehicles Rules, 1989 are very specific as standards specified under the Environment (Protection) Rules, 1986 have been adopted for every motor vehicle at construction stage and also while it is put to use.
Therefore it is necessary that compliance of such standards, need to be independently verified and assessed by the concern agencies while granting Certificate of Test, under the Rule 126 of the Central Motor Vehicles Rules, 1989. It is necessary that the provisions of IS: 3028-1998, shall be strictly adhered to while testing noise limits from the automobiles.
6. Public awareness, education and information dissemination related to environmental issues have already been identified as important initiatives by various judgments of Apex court. Apex Court in Writ Petition (C) No. 72 of 1998 with Civil Appeal No. 3735 of 2005 [Arising out of SLP (C) No. 2185 (2005) 5 SCC 733 has issued directions as directed in para 179 of the judgment, issued in exercise of power conferred on Apex Court under Articles 141 and 142 of the Constitution of India, which would remain in force until 4 modified by Court or superseded by an appropriate legislation, which are as under:
"1. There is a need for creating general awareness towards the hazardous effects of noise pollution. Suitable chapters may be added in the text-books which teach civic sense to the children and youth at the initial/early level of education. Special talks and lectures be organised in the schools to highlight the menace of noise pollution and the role of the children and younger generation in preventing it. Police and civic administration should be trained to understand the various methods to curb the problem and also the laws on the subject.
2. The State must play an active role in this process. Residents Welfare Associations, Service Clubs and Societies engaged in preventing noise pollution as a part of their projects need to be encouraged and actively involved by the local administration.
3. Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions whereat firecrackers are likely to be used, need to be carried out."
7. The matter was previously raised before the Hon'ble Supreme Court of India in the case of M.C. Mehta Vs. Union of India & Ors., Writ Petition (Civil) No. 13029 of 1985 dated 24.08.2018 and Hon'ble Apex Court dealt with the matter as follows:-
16. It is an established principle of law that the right to life, as envisaged under Article 21 of the Constitution of India includes the right to a decent environment1. It includes within its ambit the right of a citizen to live in a clean environment2. With regard to vehicular traffic, this Court has issued a number of directions to ensure a clean environment and reduce pollution3. It has been held that the right to clean environment is a fundamental rights4.The right to live in an environment free from smoke and pollution follows from the "quality" of life which is an inherent part of Article 21 of the Constitution. The right to live with human dignity becomes illusory in the absence of a healthy environment5. The right to life not only means leading a life with dignity but includes within its ambit the right to lead a healthy, robust life in a clean atmosphere free from pollution. Obviously, such rights are not absolute and 1 Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630;(1990) 1 SCC 520.2
Bhavani River Sakthi Sugars Ltd., In re, (1998) 2 SCC 601 3 M.C. Mehta v. Union of India, (1998) 6 SCC 60, M.C. Mehta v. Union of India, (1998) 6 SCC 63, M.C. Mehta v. Union of India (Matter regarding emmission standard for vehicles), (1999) 6 SCC 12, M.C. Mehta v. Union of India, (2002) 10 SCC 191, M.C. Mehta v. Union of India, 2017 SCC Online SC 394 4 N.D. Jayal v. Union of India, (2004) 9 SCC 362.
5Shantistar Builders vs Narayan Khimalal Gotame & Ors. Etc, AIR 1990 SC 630, M.C. Mehta v. Union of India,(2004) 12 SCC 118, State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389.
5have to co-exist with sustainable development. Therefore, if there is a conflict between health and wealth, obviously, health will have to be given precedence. When we are concerned with the health of not one citizen but the entire citizenry including the future citizens of the country, the larger public interest has to outweigh the much smaller pecuniary interest of the industry, in this case the automobile industry, especially when the entire wherewithal to introduce the cleaner technology exists."
8. The learned counsel for the CPCB has submitted that the CPCB has issued certain guidelines and rules are framed with regard to the noise pollution. The Noise Pollution (Regulation and Control) Rules, 2000 provides as follows:
"(The Principal Rules were published in the Gazette of India, vide S.O. 123(E), dated 14.2.2000 and subsequently amended vide S.O. 1046(E), dated 22.11.2000, S.O. 1088(E), dated 11.10.2002, S.O. 1569 (E), dated 19.09.2006 and S.O. 50 (E) dated 11.01.2010 under the Environment (Protection) Act, 1986.) Whereas the increasing ambient noise levels in public places from various sources, inter-alia, industrial activity, construction activity, fire crackers, sound producing instruments, generator sets, loud speakers, public address systems, music systems, vehicular horns and other mechanical devices have deleterious effects on human health and the psychological well being of the people; it is considered necessary to regulate and control noise producing and generating sources with the objective of maintaining the ambient air quality standards in respect of noise;
Whereas a draft of Noise Pollution (Control and Regulation) Rules, 1999 was published under the notification of the Government of India in the Ministry of Environment and Forests vide number S.O. 528 (E), dated the 28th June, 1999 inviting objections and suggestions from all the persons likely to be affected thereby, before the expiry of the period of sixty days from the date on which the copies of the Gazette containing the said notification are made available to the public;
And whereas copies of the said Gazette were made available to the public on the 1st day of July, 1999;
6And whereas the objections and suggestions received from the public in respect of the said draft rules have been duly considered by the Central Government;
Now, therefore, in exercise of the powers conferred by clause
(ii) of subsection (2) of section 3, sub-section (1) and clause (b) of sub-section (2) of section 6 and section 25 of the Environment (Protection) Act, 1986 (29 of 1986) read with rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following rules for the regulation and control of noise producing and generating sources, namely:-
The Noise Pollution (Regulation and Control) Rules, 2000
1. Short-title and commencement.-
(1) These rules may be called the 'Noise Pollution (Regulation and Control) Rules, 2000.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Definitions- In these rules, unless the context otherwise requires,-
(a) "Act" means the Environment (Protection) Act, 1986 (29 of 1986);
(b) "area / zone" means all areas which fall in either of the four categories given in the Schedule annexed to these rules;
(c) "authority" means and includes any authority or officer authorized by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer not below the rank of the Deputy Superintendent of Police designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force;
(d) "court" means a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice and includes any court of law presided over by a judge, judges or a magistrate and acting as a tribunal in civil, taxation and criminal cases;
(e) "educational institution" means a school, seminary, college, university, professional academies, training institutes or other educational establishment, not necessarily a chartered institution and includes not only buildings, but also all grounds necessary for the accomplishment of the full scope of educational 7 instruction, including those things essential to mental, moral and physical development;
(f) "hospital" means an institution for the reception and care of sick, wounded, infirm or aged persons, and includes government or private hospitals, nursing homes and clinics;
(g) "person" shall include any company or association or body of individuals, whether incorporated or not;
(h) "State Government" in relation to a Union territory means the Administrator thereof appointed under article 239 of the Constitution.
(i) "public place" means any place to which the public have access, whether as of right or not, and includes auditorium, hotels, public waiting rooms, convention centres, public offices, shopping malls, cinema halls, educational institutions, libraries, open grounds and the like which are visited by general public; and
(j) "night time" means the period between 10.00 p.m. and 6.00 a.m.
3. Ambient air quality standards in respect of noise for different areas/zones.-
(1) The ambient air quality standards in respect of noise for different areas / zones shall be such as specified in the Schedule annexed to these rules.
(2) The State Government shall categorize the areas into industrial, commercial, residential or silence areas / zones for the purpose of implementation of noise standards for different areas.
(3) The State Government shall take measures for abatement of noise including noise emanating from vehicular movements, blowing of horns, bursting of sound emitting firecrackers, use of loud speakers or public address system and sound producing instruments and ensure that the existing noise levels do not exceed the ambient air quality standards specified under these rules.
(4) All development authorities, local bodies and other concerned authorities while planning developmental activity or carrying out functions relating to town and country planning shall take into consideration all aspects of noise pollution as a parameter of quality of life to avoid noise menace and to 8 achieve the objective of maintaining the ambient air quality standards in respect of noise.
(5) An area comprising not less than 100 metres around hospitals, educational institutions and courts may be declared as silence area / zone for the purpose of these rules.
4. Responsibility as to enforcement of noise pollution control measures:
(1) The noise levels in any area / zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule.
(2) The authority shall be responsible for the enforcement of noise pollution control measures and the due compliance of the ambient air quality standards in respect of noise.
(3) The respective State Pollution Control Boards or Pollution Control Committees in consultation with the Central Pollution Control Board shall collect, compile and publish technical and statistical data relating to noise pollution and measures devised for its effective prevention, control and abatement.
5. Restrictions on the use of loud speakers / public address system and sound producing instruments.-
(1) A loud speaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls, banquet halls or during a public emergency.
(2) Notwithstanding any thing contained in sub-rule (2), the State Government may subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address system and the like during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year. The concerned State Government shall generally specify in advance, the number and particulars of the days on which such exemption would be operative.
(3) The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB (A) above the ambient noise standards for the area or 75 dB (A) whichever is lower;
(4) The peripheral noise level of a privately owned sound system or a sound producing instrument shall not, at the boundary of the private place, exceed by more than 5 dB (A) 9 the ambient noise standards specified for the area in which it is used.
5A. Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers:-
(1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency.
(2) Sound emitting fire crackers shall not be burst in silence zone or during night time.
(3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones.
6. Consequences of any violation in silence zone / area.-
Whoever, in any place covered under the silence zone / area commits any of the following offence, he shall be liable for penalty under the provisions of the Act:-
(i) whoever, plays any music or uses any sound amplifiers,
(ii) whoever, beats a drum or tom-tom or blows a horn either musical or pressure, or trumpet or beats or sounds any instrument, or
(iii) whoever, exhibits any mimetic, musical or other performances of a nature to attract crowds.
(iv) whoever, bursts sound emitting fire crackers; or
(v) whoever, uses a loud speaker or a public address system.
7. Complaints to be made to the authority.-
(1) A person may, if the noise level exceeds the ambient noise standards by 10 dB (A) or more given in the corresponding columns against any area / zone or, if there is a violation of any provision of these rules regarding restrictions imposed during night time, make a complaint to the authority.
(2) The authority shall act on the complaint and take action against the violator in accordance with the provisions of these rules and any other law in force.
8 Power to prohibit etc. continuance of music sound or noise.-
(1) If the authority is satisfied from the report of an officer incharge of a police station or other information received by him including from the complainant that it is 10 necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any person who dwell or occupy property on the vicinity, he may, by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting, controlling or regulating:-
(a) the incidence or continuance in or upon any premises of-
(i) any vocal or instrumental music,
(ii) sounds caused by playing, beating, clashing, blowing or use in any manner whatsoever of any instrument including loudspeakers, public address systems, horn, construction equipment, appliance or apparatus or contrivance which is capable of producing or re-producing sound, or
(iii) sound caused by bursting of sound emitting fire crackers, or,
(b) the carrying on in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise.
(2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order:
Provided that before any such application is disposed of, the said authority shall afford to the applicant and to the original complainant, as the case may be, an opportunity of appearing before it either in person or by a person representing him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection."
9. Similarly, the ambient noise standard in respect of noise is also laid down and necessary protocol are there which is as follows:
"
Area Category of Area / Zone Limits in dB(A) Leq* code Day Night Time Time (A) Industrial area 75 70 (B) Commercial area 65 55 (C) Residential area 55 45 (D) Silence Zone 50 40 11 Note:-
1. Day time shall mean from 6.00 a.m. to 10.00 p.m.
2. Night time shall mean from 10.00 p.m. to 6.00 a.m.
3. Silence zone is an area comprising not less than 100 metres around hospitals, educational institutions, courts, religious places or any other area which is declared as such by the competent authority.
4. Mixed categories of areas may be declared as one of the four above mentioned categories by the competent authority.
* dB(A) Leq denotes the time weighted average of the level of sound in decibels on scale A which is relatable to human hearing.
A "decibel" is a unit in which noise is measured.
"A", in dB(A) Leq, denotes the frequency weighting in the measurement of noise and corresponds to frequency response characteristics of the human ear.
Leq: It is an energy mean of the noise level over a specified period.
Note : The Principal Rules were published in the Gazette of India, vide S.O. 123(E), dated 14.2.2000 and subsequently amended by the Noise Pollution (Regulation and Control) (Amendment) Rules, 2000 vide S.O. 1046(E), dated 22.11.2000 and by the Noise Pollution (Regulation and Control) (Amendment) Rules, 2002 vide S.O. 1088(E), dated 11.10.2002, under the Environment (Protection) Act, 1986."
10. Similarly, ambient air quality standard in India is also fixed and that is in operation and the authorities concerned are legally bound to follow the protocol issue by the CPCB:
"Ambient air quality refers to the condition or quality of air surrounding us in the outdoors. National Ambient Air Quality Standards are the standards for ambient air quality set by the Central Pollution Control Board (http://cpcb.nic.in/) (CPCB) that is applicable nationwide. The CPCB has been conferred this power by the Air (Prevention and Control of Pollution) Act, 1981.
Ambient Air Quality Standards in India The Air (Prevention and Control of Pollution) Act 1981 (http://www.envfor.nic.in/legis/air/air1.html) was enacted by the Central Government with the objective of arresting the deterioration of air quality. The Air (Prevention and Control of Pollution) Act 1981 12 describes the main functions of the Central Pollution Control Board (CPCB) as follows:
To advise the Central Government on any matter concerning the improvement of the quality the air and the prevention, control and abatement of air pollution.
To plan and cause to be executed a nation-wide programme for the prevention, control and abatement of air pollution. To provide technical assistance and guidance to the State Pollution Control Board.
To carry out and sponsor investigations and research related to prevention, control and abatement of air pollution. To collect, compile and publish technical and statistical data related to air pollution; and To lay down and annul standards for the quality of air.
The mandate provided to the CPCB under the Air (Prevention and Control of Pollution) Act empowers it to set standards for the quality of air.
The current National Ambient Air Quality Standards were notified on 18 November 2009 (http://www.cpcb.nic.in/upload/Latest/Latest_48_FINAL_AIR_STAN DARD.pdf) by the Central Pollution Control Board.
Table 1: National Ambient Air Quality Standards Pollutant Time Concentration Ecologically Weighted in Ambient Sensitive Average Air Area Industrial, (notified by Residential, Central Rural and Government Other Areas Sulphur Dioxide Annual* 50 80 20 80 (SO2), 24 hours** μg/m3 Nitrogen Dioxide Annual* 40 80 30 80 (NO2), 24 hours** μg/m3 Particulate Matter Annual* 60 100 60 100 (size less than 24 hours** 10 μm) or PM10 μg/m3 Particulate Matter Annual* 40 60 40 60 (size less than 24 hours** 2.5 μm) or PM2.5 μg/m3 Ozone (O3) μg/m3 8 hours* 100 180 100 1 hour** 180 Lead (Pb) Annual* 0.50 1.0 0.50 μg/m3 24 hours** 1.0 Carbon Monoxide 8 hours* 02 04 02 04 (CO) mg/m3 1 hour** 13 Ammonia (NH3) Annual* 100 400 100 μg/m3 24 hours** 400 Benzene (C6H6) Annual* 5 5 μg/m3 Benzo(a)Pyrene(BaP)- Annual* 1 1 particulate phase only, ng/m3 Arsenic(As), Annual* 6 60 ng/m3 Nickel (Ni), Annual* 20 20 ng/m3 * Annual arithmetic mean of minimum 104 measurements in a year at a particular site taken twice a week 24 hourly at uniform intervals.
** 24 hourly or 8 hourly or 1 hourly monitored values, as applicable, shall be complied with 98% of the time, they may exceed the limits but not on two consecutive days of monitoring.
Source: National Ambient Air Quality Standards, Central Pollution Control Board Notification in the Gazette of India, Extraordinary, New Delhi, 18th November, 2009 Prior to the November 2009 standards, India had set Air Quality standards on 11 April 1994, and this was later revised on 14 October 1998. The 2009 standards further lowered the maximum permissible limits for pollutants and made the standards uniform across the nation. Earlier, less stringent standards were prescribed for industrial zones as compared to residential areas.
Further, a new National Air Quality Index (AQI) (http://www.arthapedia.in/index.php?title=National_Air_Qual ity_Index) has been launched in October 2014 to disseminate information on air quality in an easily understandable form for the general public. The measurement of air quality is based on eight pollutants, namely, PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb for which short-term (up to 24-hourly averaging period) National Ambient Air Quality Standards are prescribed and the worst reading in these pollutants represents the AQI for that city."
11. In light of above guidelines issued by the CPCB and the Noise Pollution (Regulation and Control) Rules, 2000, the authorities are legally bound to follow the guidelines and parameters as laid down by the CPCB and the Noise Pollution (Regulation and Control) Rules, 2000.
1412. The Hon'ble High Court of Judicature, Allahabad in the case of P.I.L. No. 570 of 2020, Afzal Ansari And 2 Others vs State Of U.P. And 2 Others decided on 15.05.2020, the Court dealt with the matter and distinguished the freedom of conscience and its limitation as follows:-
16. xxxxxx it will be relevant to quote Article 25 as well as Article 19 (1)(2)
25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
19. Protection of certain rights regarding freedom of speech, etc.--(1) All citizens shall have the right--
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions 2 [or co-operative societies];
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; [and] * * * * *
(g) to practise any profession, or to carry on any occupation, trade or business.
[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 6[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.] (3) ...................................................................... (4)....................................................................... (5).......................................................................
15(6).......................................................................
17. In this regard it may be noted that the issue of the use of sound amplifying devices for amplifying human voice and other sounds while offering daily pujas by a Hindu Organization arose before the Calcutta High Court in the case of Om Birangana Religious Society Vs. The State and Ors., MANU/WB/0254/1996, wherein it was held as under:
"15. It is well-settled that the right to propagate one's religion means the right to communicate a person's belief to another or to expose the tenets of that faith. The question is whether the right to propagate religion includes the right to use loud- speakers and microphones for the purpose of chanting religious tenets or religious texts and/or the indiscriminate use of microphones or loud-speakers during religious performance in the society.
...
17. There cannot be any dispute that sound is a known source of pollution. The adverse and ill effect of sound on human body is also known. It has a tremendous impact on the nervous system of human being ....
20. The religion that has been performed by the petitioner and others, is nothing new, but the same is there for several centuries. It cannot be said that the religious teachers or the spiritual leaders who had laid down these tenets, had any way desired the use of microphones as a means of performance of religion. Undoubtedly, one can practise, profess and propagate religion, as guaranteed under Article 25(1) of the Constitution, but that is not an absolute right. The provisions of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution. On true and proper construction of the provisions of Article 25(1), read with Article 19(1)(a) of the Constitution, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require."
19. The Apex Court in the case of Church of God (Full Gospel) in India Vs. K.K.R. Majestic reported in (2000) 7 SCC 282 has held as follows:
"no religion or religious sect can claim that the use of loudspeakers or similar instruments for prayers or for worship or for celebrating religious festivals is an essential part of the religion which is protected under Article 25. We hold that there is no fundamental right to use loud-speakers or similar instruments under Article 19 (1) (a) of the Constitution. On the contrary, the use of such instruments contrary to the Noise Pollution Rules will be a violation of fundamental rights of citizens under Article 21 of the Constitution as well as fundamental right of citizens of not being forced to listen something which they do not desire to listen"
20. In the case of P.A. Jacob v. Supdt. of Police, AIR 1993 Ker 1, it was held that right to speech implies the right to silence. It implies freedom, not to listen, and not to be forced to listen.
16The right comprehends freedom to be free from what one desires to be free from. A person cannot be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear.
22. The apex court while dealing with the issue of privacy as part of Article 21 of Constitution of India held that right to sleep has always been treated to be a fundamental right like right to breath, to eat, to drink, to blink, etc. In the case of Ramlila Maidan Incident, in re, reported in 2012 (5) SCC 1 in paragraphs 318 and 327, the apex court held as follows:
"318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc."
"327. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold- blooded crimes. It is also a device adopted during warfare where prisoners of war and those involved in espionage are subjected to treatments depriving them of normal sleep."
23. There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.
24. In the case of Church of God (Supra), the Supreme Court has held that no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted. A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours. Similarly, the old and the infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensitive to noise. Their rights are also required to be honoured.
1726. It cannot be denied that sound is one of the recognised mode of creating pollution and thus sound pollution by means of using loud-speakers, without prior permission of authority, as prescribed in law, has to be controlled. A citizen has a right to leisure, right to sleep, right not to hear and right to remain silent. He has also the right to read and speak with others. Use of microphones certainly takes away the right of the citizens to speak with others, their right to read or think or the right to sleep. There may be heart patients or patients suffering from nervous disorder and they may be compelled to bear this serious impact of sound pollution which has had an adverse effect on them. It may create health problems.
27. No person has right to take away the right of others. There is no religious freedom in this country except the provisions of Art. 25 of the Constitution which is subject to public order, morality and health and other provisions of part III including Art. 19(1)(a) of the Constitution of India. Freedom of religion is subject to others' right as guaranteed under Article 19(1)(a) of the Constitution, namely, religious freedom cannot abridge or take away or suspend others' right under Article 19(1)(a) regarding their freedom of speech and expression. Use of loud-speakers is not an integral part of Azan or necessary for making Azan effective. Use of loud-speakers otherwise in accordance with law affects fundamental rights of the citizens under Article 19 (1)(a) of the Constitution of India. No one has got the right to make other persons captive listeners. One cannot disturb others' basic human rights and fundamental rights. Use of loud-speakers can cause hearing loss, disturbance of sleep, interference with communication, annoyance etc. and other diseases. Right to sleep is not only a fundamental right but it is to be conceded to be a basic human right.
29. At this juncture, it would be worthwhile to refer to Rule 4, 5, 5A and Section 6 of the Noise Pollution Rules as follows;
4. Responsibility as to enforcement of noise pollution control measures.
(1) The noise levels in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule.
(2) The authority shall be responsible for the enforcement of noise pollution control measures and the due compliance of the ambient air quality standards in respect of noise.
[(3) The respective State Pollution Control Boards or Pollution Control Committees in consultation with the Central Pollution Control Board shall collect, compile and publish technical and statistical data relating to noise pollution and measures devised for its effective prevention, control and abatement.]
5. Restrictions on the use of loud speakers/public address system (and sound producing instruments).
18(1) A loud speaker or a public address system shall not be used except after obtaining written permission from the authority.
[(2) A loud speaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls or during a public emergency.] [(3) Notwithstanding anything contained in sub-rule (2), the State Government may subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems and the like during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural, religious or festive occasion of a limited duration not exceeding fifteen days in all during a calendar year and the concerned State Government or District Authority in respect of its jurisdiction as authorized by the concerned State Government shall generally specify in advance, the number and particulars of the days on which such exemption should be operative. Explanation.- For the purposes of this sub-rule, the expressions-
(i) "festive occasion" shall include any National function or State function as notified by the Central Government or State Government; and
(ii) "National function or State function" shall include"-
(A) Republic Day;
(B) Independence Day;
(C) State Day; or (D) such other day as notified by the Central Government or the State Government.]15 [(4) The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB (A) above the ambient noise standards for the area or 75 dB (A) whichever is lower;
(5) The peripheral noise level of a privately owned sound system or a sound producing instrument shall not, at the boundary of the private place, exceed by more than 5dB (A) the ambient noise standards specified for the area on which it is used.] 5A. Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers.
(1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency.
(2) Sound emitting fire crackers shall not be burst in silence zone or during night time.
(3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones.] 19
6. Consequences of any violation in silence zone/area. Whoever, in any place covered under the silence zone/area commits any of the following offence, he shall be liable for penalty under the provisions of the Act:
(i) whoever, plays any music or uses any sound amplifiers,
(ii) whoever, beats a drum or tom-tom or blows a horn either musical or pressure, or trumpet or beats or sounds any instrument, or
(iii) whoever, exhibits any mimetic, musical or other performances of a nature to attract crowds.
[(iv) whoever, bursts sound emitting fire crackers; or
(v) whoever, uses a loud speaker or a public address system.]
30. Rule 5 deals with not only use of loud-speakers/public address system but it also deals with sound producing instruments or a musical instrument or a sound amplifier. Under Sub-rule (1) of Rule 5, it is provided that a loud-speaker or a public address system shall not be used except after obtaining written permission from the Authority under the Noise Pollution Rules. Sub-rule (2) provides that a loudspeaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises such as auditorium, conference halls, banquet halls, community halls or during a public emergency. The Schedule under the Rules of 2000, defines night time to mean the period between 10.00 p.m. to 6.00 a.m. Day time is defined as 6.00 am to 10.00 pm. Thus, even if permission is granted under Sub-rule (1) of Rule (5) to use loudspeakers or public address systems, the same cannot be used between 10.00 pm till 6.00 a.m. Then comes Sub-rule (3) which confers power of relaxation on the State Government. It confers power on the State to permit the use of loudspeakers or public address system and the like during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion not exceeding fifteen days in all during a calendar year. The said Sub-Rule requires the concerned State Government to specify in advance, the number and particulars of the days on which such exemption would be operative. Sub-rule (3) is an exception carved out which permits the State Government to relax the prohibition under Sub-rule (3) for a period of 15 days in a calender year by permitting use of loudspeakers/public address systems or the like only between 10 pm to 12 midnight.
31. The challenge to Sub-rule (3) was negated by the Apex Court in the case of Noise Pollution (VII) Vs. Union of India and Ors. (2005) 8 SCC 796. In paragraph 8 of the said decision the Apex Court held thus:-
"8. Looking at the diversity of cultures and religions in India, we think that a limited power of exemption from the operation 20 of the Noise Rules granted by the Central Government in exercise of its statutory power cannot be held to be unreasonable. The power to grant exemption is conferred on the State Government. It cannot be further delegated. The power shall be exercised by reference to the State as a unit and not by reference to districts, so as to specify different dates for different districts. It can be reasonably expected that the State Government would exercise the power with due care and caution and in the public interest. However, we make it clear that the scope of the exemption cannot be widened either by increasing the number of days or by increasing the duration beyond two hours. If that is attempted to be done, then the said Sub-rule (3) conferring power to grant exemption may be liable to be struck down as violative of Article 14 and 21 of the Constitution. We also make it clear that the State Government should generally specify in advance, the number and particulars of the days on which such exemption will be operative. Such specification would exclude arbitrariness in the exercise of power. The exemption, when granted, shall not apply to silence zone areas. This is only as a clarification as this even otherwise is the position of law."
32. Thus, under no circumstances loud-speakers or any public address system or musical system or sound amplifiers can be permitted to be used between 12.00 p.m. to 6.00 a.m. As according to Noise Pollution Rules, night hours have been fixed between 10. p.m. to 6 a.m. For the period between 10pm to 12 midnight the power of relaxation has been conferred only upon the State Government under Sub Rule 3 of Rule 5.
37. xxxx In this regard emphasis has been laid on Paragraphs 9 & 10 of the guidelines contained in order No. 40-3/2020-D dated 24.03.2020, issued by the Ministry of Home Affairs, Government of India for containing Covid-19 pandemic in the country, which are as follows:
"(9) All places of worship shall be closed for public. No religious congregations will be permitted, without any exception.
(10)All social /political/ sports/ entertainment/ academic/ cultural/ religious .functions/ gathering shall be barred."
13. On the basis of decision as above, we finally dispose of the application with direction to the authorities concerned and respondents to maintain the ambient air quality and ambient noise standards as per parameter laid down by the CPCB and the guidelines and rules mentioned above.
2114. With the observations that the respondents are directed to follow the guidelines issued by the CPCB and also the provisions as contained in the Noise Pollution (Regulation and Control) Rules, 2000, this application which is pending from 2015 is finally disposed of.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM Siddhanta Das, EM July 03, 2020 M.A. No.03/2015 In M.A. No. 202/2013 in Original Application No. 36/2011(WZ) R 22